April 9, 2010After being charged with a crime, a defendant usually has three main options: fight the charge via motions and a trial, enter a standard guilty plea or enter a special or non-standard guilty plea.

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Under Georgia law, a defendant has several special or non-standard plea options:

First Offender: Under the Georgia First Offender Act, a defendant, at the time of entering a guilty or Nolo plea, can request that the judge sentence the defendant to First Offender treatment. If the judge agrees to allow First Offender, then after the defendant completes the terms and conditions of the sentence (including jail time under certain cases), the defendant is deemed to not have a criminal conviction. A primary benefit of the Georgia First Offender Act is that the defendant can honestly state they have not been convicted of a crime.

O.C.G.A. § 42-8-60 reads: “upon a verdict or plea of guilty or nolo contendere, but before an adjudication of guilt, the court may, in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, defer further proceeding and place the defendant on probation as a first offender.”

First Offender does not mean that the incident is wiped away or expunged, but it does mean that it should not appear as a conviction on the defendant’s criminal history. However, law enforcement and prosecutors still have access to Georgia First Offender information and it can be used in any future proceedings. Additionally, the record may be available through other sources such as records at the court house, criminal justice agency website and third party vendors. The First Offender is not automatically put in place at the end of probationary period and an additional step must be taken by the prosecutor to ensure the First Offender is certified and sent to the Georgia Criminal Information Center.

The downside of the Georgia First Offender Act is that any violation of the terms and conditions of the sentence can result in a re-sentencing of the defendant up to the maximum sentence. Also important is that certain jobs such as teaching, child care, elder care are exempt under O.C.G.A. § 42-8-63.1 when the defendant is charged with certain violent, sexual or abuse charges. Likewise, DUI and certain violent, sexual and abuse charges are specifically exempt from any First Offender treatment.

Obviously, First Offender can only be used once. However, in some cases, a judge will allow a person with a criminal record of misdemeanors to plea under First Offender if they have not previously used it. First Offender can be used either for a misdemeanor or a felony, but not one of each.

Conditional Discharge: Generally reserved for Marijuana Possession of less than one ounce (O.C.G.A. §16-3-2) and Possession of Alcohol by a Minor/ Under Age Possession or Consumption (O.C.G.A. §3-3-23.1), a Conditional Discharge is where a defendant enters a guilty plea, but the judge withholds disposition until a period of probation is completed. Usually the probation period is 3 to 12 months for Possession of Alcohol by a Minor and 12 months for Marijuana Possession of less than one ounce. In addition to probation, many judges require Risk Reduction School/ DUI School, 20-40 hours of community service, Drug and Alcohol Evaluation and complete recommendations, and the payment of a fine along with associated costs and fees.

A Conditional Discharge and completion of DUI School will save a defendant’s license from suspension in a Marijuana Possession of less than one ounce and the Conditional Discharge will save the defendant’s license in a Possession of Alcohol by a Minor/ Under Age Possession or Consumption case. Many defendants are surprised to learn that almost all drug offenses in Georgia result in a license suspension, even if not driving.

A Conditional Discharge can only be used once for the offense and requires the judge’s approval. Additionally, a Conditional Discharge is not eligible for expungement unless the terms specifically provided for expungement. (See O.C.G.A §35-3-37(d)(7).)

Drug Court: Similar to a Conditional Discharge, there is a Georgia Drug Court for those charged with felony possession (not sale or trafficking) or sometimes drug related property crimes. The program is usually at least 2 years and is an intensive rehabilitation effort which includes random screens, counseling, meetings in court with the judge, sanctions for violations and incentives for quality improvement. Many participants have experienced life changing results and might be dead or in jail if not for the program. However, some defendants view the Georgia Drug Court program as burdensome and do not wish to attempt the unknown.

Nolo: A Nolo or No Contest plea is essentially a guilty plea by another name. Probably the best use of a Nolo plea is for a Marijuana Possession of less than one ounce and various driving infractions.

In regards to a Georgia Nolo plea on a Marijuana Possession of less than one ounce, usually a Nolo plea, completion of DUI School and the payment of a fine will allow a defendant to have their probation terminate early or go non-reporting. This is an alternative that many choose when not wanting to do the conditions required in a Conditional Discharge. A Nolo plea and completion of DUI School will save a defendant’s license on a Marijuana Possession of less than one ounce case. (Almost all drug offenses in Georgia result in a license suspension, even if not driving.)

A Georgia Nolo for many driving offenses is an option depending on the charge, and the age of the driver. Please note a Nolo plea never prevents a commercial disqualification.

Additionally, a Nolo is not an admission of guilt and cannot be used in a civil case against you as an admission. The judge must approve a Nolo/ No Contest plea and a Nolo can only be used every 5 years per offense.

Expungement: Expungement is a complicated statute that allows for a record/ arrest cycle to be sealed (except to law enforcement and prosecutors) under certain circumstances including approval by the prosecutor. (See O.C.G.A. § 35-3-37(d) (1).)

If the case is Dismissed, Not Presented to the Grand Jury, Nolle Prossed/ Nolle Prosequi, Dead Docketed, marked No Further Action Anticipated or No Record on File, then an expungement may be possible. Charges that are resolved by Guilty Plea, Not Guilty, Nolo Contendre, and First Offender Act are not eligible for Expungement in Georgia .

A Georgia expungement request requires various filing fees (usually $25.00 to the local agency and $25.00 to the State) and an application that is filled out by the defendant and is then filed with the arresting agency. Once filed with the arresting agency, the agency sends it to the prosecutor for approval. If the application is approved by the prosecutor, then the expungement request is sent to the Georgia Criminal Information Center.

In conclusion, the area of sentencing can be very complicated; therefore, it is always advisable to consult with an attorney. Likewise, this article is an overview of common options in Georgia, not a complete list of programs available in Georgia.

About the author: John Breakfield is an attorney with Breakfield & Associates, Attorneys in Gainesville, Georgia and handles matters regarding Sentencing and Criminal Defense. The law office of Breakfield & Associates, Attorneys can assist clients throughout Northeast Georgia including: Hall County (Gainesville, Oakwood, Flowery Branch), Jackson County(Jefferson, Braselton) White County (Helen, Cleveland), Lumpkin County (Dahlonega), Dawson County (Dawsonville), Habersham County (Demorest, Cornelia), and all of Northeast Georgia.

This article should not be considered nor relied upon as legal advice since it is only intended for general overview and informational purposes. Please consult with an attorney on your specific situation in order to determine an appropriate legal course of action.